Tuesday, July 22, 2014

Are You a "Prevailing Party" When a Complaint Is Dismissed Without Prejudice?

Here, Defendant is the prevailing party under Florida law, as the district court dismissed Plaintiff’s action against Defendant, despite the fact that the dismissal was without prejudice....

In the case at bar, on the other hand, the district court’s dismissal of the complaint without prejudice was based not on a procedural ground or technical defect but rather on Plaintiff’s failure to state a cause of action for wrongful dishonor of a letter of credit and its failure to adequately plead fraud. Thus, we find the dismissal without prejudice of the complaint here to be more aligned with the Florida cases finding that a defendant is the prevailing party for purposes of attorneys’ fees when he succeeds in having the plaintiff’s complaint involuntarily dismissed.

A third party debt collector brought an action against defendant based on a contract, downloaded from the computer, after peering into defendants credit file. The judgment was a dismissal without prejudice asking for $25,000.00 an erroneous amount, awarded $7,000.00. The defendant was in the process of moving, did not have immediate access to files, although he had paid the amount in full, in addition the account was past the statute of limitations. Can the defendant file another suit, since this is fraud upon the court? Pam 760 617-7989/CA